When can Employment Tribunals strike out claims?

Employment Tribunals have the power to strike out Employment Tribunal (ET) claims in certain circumstances, and can do so at any stage of the proceedings either on its own initiative or following the application of a party. They are generally reluctant to do so, particularly if the claimant is a litigant in person without legal representation. However, the Employment Appeals Tribunal (EAT) has recently issued judgment in two cases, in which they concluded that strike out was in fact appropriate. These cases serve as a useful reminder that the ET will be willing to strike out claims where necessary, and provide useful guidance as to the factors the ET will consider when doing so.

What legislative powers does an ET have for striking out a claim?

Tribunals can strike out all or part of a claim on any of the following grounds

a) That it is scandalous or vexatious or has no reasonable prospect of success

b) That the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious

c) For non-compliance with the Tribunal rules or with an order of the Tribunal

d) That it has not been actively pursued

e) That the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response.

Case 1: Kaul v Ministry of Justice and Others

The Claimant, HHJ Kaul, was a Circuit Judge (that is, a judge who hears cases in the Crown Court and county courts).  She brought claims in the ET of indirect discrimination, victimisation, failure to make reasonable adjustments, harassment, and discrimination arising from disability.

These claims were related to two grievances she had brought against her employer, one concerning the actions of other judges, and one relating to court staff. Her issues with the grievance process included the delay of her employer in responding, the fact that her employer requested a schedule of complaints, and her employer informing her that her grievances might be out of time.

The ET struck out HHJ Kaul’s claims, on the ground that she had no reasonable prospect of success. Her claims arose from the manner in which the grievances had been addressed, but did not concern the outcome of those grievances. The ET considered that the pleaded case did not particularise how and why the acts complained of were said to amount to the discrimination that the Claimant had alleged.

On appeal, the EAT upheld the ET’s decision, and agreed that the ET were entitled to reach the conclusions they had. They said that the need for caution when considering strike out does not prohibit this route if the circumstances of the case permit it. The EAT noted that in this case, the claims rested on undisputed facts which might occur during the course of any grievance process. However, following a previous case it is still open to the ET to strike out a claim even if facts central to the claim are disputed.

Case 2: Mr T Smith v Tesco Stores Limited

The Claimant, who had been employed as a Customer Assistant at Tesco Stores for 10 years, brought claims of unfair dismissal, race discrimination and disability discrimination to the ET. This was following his dismissal after an altercation with a store manager, and an allegation that he had been abusive to a customer in store.

Five preliminary hearings were held in the matter, in which the Judge attempted to clarify the core issues and various claims. Throughout the preliminary hearings, Mr Smith attempted to add further strands to his claims, and following the third hearing, applied to amend his claim to add depression as a disability. This was refused, and the Claimant then refused to comply with the Judge’s order to communicate with the Respondent and together conclude the list of issues in the case. The Claimant instead applied to add further claims, which was again rejected.

Throughout the fifth preliminary hearing which was held virtually, Mr Smith refused to look at the screen or address the Judge directly, instead making his communications via the court clerk. Mr Smith also deliberately spoke over the Judge, and continued to refuse to correspond directly with her. Mr Smith then left the hearing room before the Judge had heard from the respondent’s counsel, and the hearing continued without him.

Ultimately, the ET Judge found that Mr Smith’s conduct was vexatious in several ways. This included the fact that he had disregarded his duty of cooperation, had failed to follow orders, how he had behaved towards the ET, and the fact that his application to amend was unreasonable and vague. The ET considered that there were no other measures available that had not already been tried without success, and considered that strike out was the only appropriate remedy left. On appeal, the EAT agreed that strike out was an appropriate response.

Conclusion

To conclude, these cases serve as a reminder to Claimants that whilst strike out is a draconian measure and not taken lightly by the ET, there is not an outright refusal by the ET to consider it as a last resort if appropriate. Claimants must comply with court orders, conduct the matter in an appropriate and respectful manner, and produce a clear and detailed case where possible.